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Bus Lane PCN
Ignatius1
post Mon, 4 Jul 2016 - 20:29
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Can anyone help sport any flaws etc. in the bus lane PCN below or at least help me try to construct an appeal?



This wasn't the only one received. There was another from 13 June, which I haven't scanned etc. (it's pretty much identical)
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post Mon, 4 Jul 2016 - 20:29
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peterguk
post Mon, 4 Jul 2016 - 20:31
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Press "report" and ask a mod. to move to correct forum.


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PASTMYBEST
post Mon, 4 Jul 2016 - 20:49
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Yep two I can see that can win on there own. they say they will issue a charge certificate, the regs only allow that they may and
F on the grounds for representations is incorrect

but ask a mod to move to council forum. Hit the report button bottom left and ask


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Ignatius1
post Mon, 4 Jul 2016 - 21:33
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QUOTE (PASTMYBEST @ Mon, 4 Jul 2016 - 21:49) *
Yep two I can see that can win on there own. they say they will issue a charge certificate, the regs only allow that they may and
F on the grounds for representations is incorrect

but ask a mod to move to council forum. Hit the report button bottom left and ask


Hmm the wording "will" and "may" is kind of some breach of the regulations.. but what does "and F on the grounds for representations is incorrect"? Is it the word "applicable"?
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PASTMYBEST
post Mon, 4 Jul 2016 - 21:52
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QUOTE (Ignatius1 @ Mon, 4 Jul 2016 - 22:33) *
QUOTE (PASTMYBEST @ Mon, 4 Jul 2016 - 21:49) *
Yep two I can see that can win on there own. they say they will issue a charge certificate, the regs only allow that they may and
F on the grounds for representations is incorrect

but ask a mod to move to council forum. Hit the report button bottom left and ask


Hmm the wording "will" and "may" is kind of some breach of the regulations.. but what does "and F on the grounds for representations is incorrect"? Is it the word "applicable"?



the phrase in the circumstances of the case should be included. This changes the meaning from merely meaning the statutory amount to if there is something wrong
with the PCN or the contravention then the amount due would be nil


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Incandescent
post Mon, 4 Jul 2016 - 22:11
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Statutory Ground for Appeal (F) has key text from the statute omitted, thus making it seriously misleading. It omits the words "in the circumstances of the case". Reason this is misleading is that with bus lane PCNs the only ground for appealing on council failure to follow the process correctly is this one, i.e. the circumstances of the case are such that the penalty exceeds the relevant amount, which where they have failed to follow due process, is NIL. For parking PCNs the Traffic Management Act 2004 introduced the statutory ground of "procedural impropriety" for this; before this act the above ground was used and was successful, but you don't have it for bus lane offences.

So by failing to include mandatory information, the PCN is unlawful and must be cancelled. Of course this is my opinion, and an adjudicator may decide it is all dandy. Frankly, I cannot see how any adjudicator worth his salt could fail to decide the same way as me, but there you are. I cannot see such a mistake coming under "substantial compliance" but some adjudicators are council patsies, I'm afraid.



This post has been edited by Incandescent: Mon, 4 Jul 2016 - 22:15
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Ignatius1
post Mon, 4 Jul 2016 - 23:58
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OK, how should I begin the appeal? How about....

"I am the registered kepper of the vehicle and this is my appeal.

1. The PCN states "If you fail to pay this charge or make representations to the Council within that period a charge certificate will be issued.". However, "The Bus Lane Contraventions (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2005" sets out in PART 6 ENFORCEMENT OF PENALTY CHARGES, Charge certificates 32.--(1) that "Where--(a) a penalty charge notice is served on any person; and (b) the penalty charge to which it relates is not paid before the end of the relevant period, the enforcing authority may serve on that person a statement (a "charge certificate") to the effect that the penalty charge in question is increased by 50 per cent."

2. Statutory Ground for Representations (F) omits key text. It should state "In the circumstances of the case the Penalty Charge exceeds the relevant amount", which where they have failed to follow due process, is nil. It is misleading and unlawful.

I'm not sure how best to argue the second point. From the advice that I'm trying to understand, I've mocked up some words, but I think it needs reworking to some different effect. Maybe there are more official regulations and acts that can be referred to in my appeal.

I think I've also noticed Kirkgate in the town centre is undergoing changes (post receipt of both PCNs). The roads are closed. I think they're doing something with the surface, maybe to try and make the stretch of road more pedestrianised, more prominent signs and road markings maybe. I scanned the PCN with colour so we can see that the lane in question has orange road markings. Should town/city centre bus lanes be marked in red? I will look to highlight this also.
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PASTMYBEST
post Tue, 5 Jul 2016 - 06:46
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Begin by getting the video, and posting here, lets see the signs and markings in place. It's always better if you can challenge the contravention first
rather than the proccess


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Ignatius1
post Tue, 5 Jul 2016 - 10:29
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QUOTE (PASTMYBEST @ Tue, 5 Jul 2016 - 07:46) *
Begin by getting the video, and posting here, lets see the signs and markings in place. It's always better if you can challenge the contravention first
rather than the proccess


OK. Today is the 14th day since the first PCN's date of issue. I probably should have requested the video earlier. The PCN states "You may, in writing request to view the record of the contravention produced by the approved device during normal office hours."

Could I request the video in the appeal?
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PASTMYBEST
post Tue, 5 Jul 2016 - 12:25
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Make an appeal in that you were not aware of entering a bus lane and the stills show no evidence of this. Absent any clear evidence the pcn should be cancelled
also investigation has shown that the Pcn does not contain all the information as required by regulation and is therefore invalid


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Ignatius1
post Tue, 5 Jul 2016 - 15:48
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QUOTE (PASTMYBEST @ Tue, 5 Jul 2016 - 13:25) *
Make an appeal in that you were not aware of entering a bus lane and the stills show no evidence of this. Absent any clear evidence the pcn should be cancelled
also investigation has shown that the Pcn does not contain all the information as required by regulation and is therefore invalid


OK - I think also the fact now that the stretch of road in question has only just been closed within the last week or two probably due to resurfacing work e.g. for the bus lane road markings to actually stand out. That seems to be worth putting into the appeal. What do you think?

Absent any clear evidence the pcn should be cancelled?
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Ignatius1
post Tue, 5 Jul 2016 - 20:14
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The Council's online appeals system contains the following options. Only one radio button can be selected.

Grounds For Representation
Please select one of the following grounds for representation and then click 'Proceed' to enter further details :

The alleged contravention did not occur
I never owned the vehicle
I ceased to own the vehicle before the date on which the alleged contravention occurred
I became the owner of the vehicle after the date on which the alleged contravention occurred
The vehicle was permitted to remain at rest in the place in question by a person who was in control of the vehicle without my consent.
We are a vehicle hire firm and the vehicle was subject to an appropriate hiring agreement at the time of the alleged contravention.
The penalty charge exceeds the amount payable in the circumstances of this case
There has been a procedural impropriety on the part of the enforcement authority
The order which is alleged to have been contravened is invalid
The notice has been served by post but the CEO was not prevented from issuing the notice at the time
The penalty charge has already been paid

Options 1, 8 or 9?


Details for appeal:

I state that the driver was not aware of entering a bus lane and the three still images show no real evidence of this. Please provide video evidence for the accused contravention. Without such clear evidence the PCN should be cancelled.

I also state that investigation has shown that the PCN does not contain all of the information that is required by regulations ("The Bus Lane Contraventions (Penalty Charges, Adjudication and
Enforcement) (England) Regulations 2005"?), that Statutory Ground for Representation (F) has key text from the statute omitted therefore is incorrect and misleading, and that it should read "The PCN charge
exceeds the amount applicable in the circumstances of the case"? By failing to include mandatory information, the PCN is unlawful and must be cancelled.

I maybe also state that the PCN states that they will issue a charge certificate, but the regulations only allow that they may issue a charge certificate.

I maybe finally state that it has been noted that Kirkgate is now closed quite possibly because of new bus lane signs, markings, ped. crossings etc.

Any further thoughts before I throw the appeals together for both PCNs and submit before midnight (14th day)?
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PASTMYBEST
post Tue, 5 Jul 2016 - 20:21
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Both Pcn's if you have two better check the other one, what date and time, wording etc


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Ignatius1
post Tue, 5 Jul 2016 - 20:28
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The other PCN's wording is identical. The only difference are slightly different still images, PCN numbers and PIN numbers however the other one for 13 June date of contravention also has the same issue date of 21 June 2016.

This post has been edited by Ignatius1: Tue, 5 Jul 2016 - 20:30
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PASTMYBEST
post Tue, 5 Jul 2016 - 20:33
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truth is the council are very unlikely to cancel these, so they will need to go to adjudication, where you have a reasonable chance of winning.

This being the case, do not tell them more than you need , let them work it out for themselves, Just tell them the PCN does not comply, not why


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Ignatius1
post Tue, 5 Jul 2016 - 20:35
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OK. I think it would've been better to respond to the PCN by post to argue the dodgy ground F etc. so now that it's
the 14th day I cannot get a letter dfelivered back in time so I think I must avoid the online appeal form (one of the
online form options also interestingly includes the words "in the circumstances of the case"), and send an email appeal to
parking@kirklees.gov.uk

This post has been edited by Ignatius1: Tue, 5 Jul 2016 - 20:38
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PASTMYBEST
post Tue, 5 Jul 2016 - 20:38
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QUOTE (Ignatius1 @ Tue, 5 Jul 2016 - 21:35) *
OK. I think it would've been better to respond to the PCN by post to argue the dodgy ground F etc. so now that it's the 14th day I cannot get a letter dfelivered back in time so I think I must avoid the online appeal form and send an email appeal to parking@kirklees.gov.uk


No you want to raise the fact that error exist, you argue as to what they are at adjudication

Last day is tomorrow by the way

This post has been edited by PASTMYBEST: Tue, 5 Jul 2016 - 20:39


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Ignatius1
post Tue, 5 Jul 2016 - 20:49
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A reasonable chance of winning, I would hope, but maybe also a reasonable chance of losing and then having to pay more?

OK, I will quickly write a letter of appeal, but I'm re-reading both PCNs and it doesn't seem to ask for any details, just to enter in the box the grounds on which representations are being made (A, B, C, D, E, F or G) and to send by post to a postal address or visit website. Of course, I'm sure they expect details to be written and included...
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PASTMYBEST
post Tue, 5 Jul 2016 - 20:54
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QUOTE (Ignatius1 @ Tue, 5 Jul 2016 - 21:40) *
A reasonable chance of winning, I would hope, but maybe also a reasonable chance of losing and then having to pay more?



Your choice . The way I look at it is this. You are walking about with 70 quid of the councils money in your pocket. They want it quick
But the law say's they have to give you a double or quits bet.

Two things in your favour, If you save a tenner a week or maybe even just a fiver, you will save most of what you have to pay if you lose

Second you have a far better than evens chance of winning

Read this case

https://1drv.ms/f/s!AtBHPhdJdppVg3DGGxJxImYmd-6I


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Ignatius1
post Tue, 5 Jul 2016 - 21:50
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Can it be confirmed that the initial bus lane PCN appeal, if submitted within the 14 day period stops the clock and so if the council reject the appeal, I can still pay the reduced rate or go to the
adjudicator? So "service of the notices'" that I've received "are deemed to be effective on the second working day after the above date of issue" (date of issue is Tuesday, 21 June 2016 so the second
working day is Thursday 23 June 2016? Doesn't that mean that the 14th day from then is Thursday 7 July?

Image of road (Kirkgate) closure.

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